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Family Law
University of Iowa School of Law
Estin, Ann Laquer

I.         Marriage and its Alternatives
A.       Marriage and the State
·         Law that Governs Marriages
–         Constitution says noting about marriage or privacy
○         Nothing in constitution mentions privacy
i.         Marriage is a body of law governed by the states
–         Marriage is extensively regulated by the state
○         Always been subject to control of the legislature
○         Although states have retained primary authority for setting the requirements of marriage,
i.         federal law has played an increasingly important role in defining the consequences of marriage.
·         Marital and Individual Privacy
–         Maynard v. Hill
○         Court upheld a legislative divorce against the claim that it impaired the wife’s property and contract rights
i.         Marriage contracts differ from ordinary contracts because the rights, duties, and obligations of the parties rested not upon their agreement, but upon the general common or statutory law of the state, which defined and prescribed those rights, duties, and obligations.
*         Parties can neither modify nor change a marriage contract without state intervention
ii.        The state always remains a third party and sets the grounds for ending a relationship
–         Shift
○         The court began to recognize marriage as a fundamental right subject to constitutional protection
i.         State cannot arbitrarily prohibit or interfere with the exercise of these marital rights without a compelling reason for doing so.
–         Griswold v. Connecticut (1965)
○         Issue à nothing in constitution mentions privacy
i.         Griswold is charged with giving information, instruction and medical advice to married persons as to the means of preventing conception.
*         Statute à This went against the Connecticut statute which prohibited such behavior
○         Held à Court held that the Constitution does not permit a state to forbid a married couple to use contraceptives. The court stated that the word liberty includes at least the fundamental rights retained by the people under Ninth Amendment.
i.         Established the right of privacy within the marital relationship free from state interference
*         Court struck down statute saying it unconstitutionally intruded upon the right of marital privacy
ii.        KEY à Recognized marriage as a fundamental right
○         Once Recognized as Fundamental Right
i.         Due Process
*         Procedural
*         Substantive
–         Loving v. Virginia
○         Facts:
i.         Statute barred marriage between races
*         Parties argue that this is a violation of the Fourteenth Amendment Equal Protection and Due process Clause
○         Heldà said that the statute was unconstitutional
i.         Equal Protection
*         Said that the statute could not be based on restricting the freedom to marry solely because of racial classification.
ii.        Due Process
*         Based on the proposition that the right to marry is a fundamental right, and one could not suppress the right to marry based on racial classification.
*         Substantive Due Process
○         Case helped establish that the right to marry was a constitutionally protected fundamental right
i.         Marriage = Fundamental Right
–         Lawrence v. Texas
○         Issue:
i.         Statute prohibited homosexual intercourse
○         Held:
i.         Held the statute unconstitutional because sexual behavior is a liberty and fundamental right to choose, organize, and have their own sexual live.
*         Government has no right to tell an individual how to organize his/her sexual behavior.
B.       Marriage as a Contract
·         Premarital Agreements
–         Until 1970, cases nearly unanimously held that financial and property aspects of divorce could not be subject of prenuptial agreements
○         Courts have held that any premarital agreement, which provide for, or facilitate, or induce a separation or divorce of the parties after marriage,
i.         is contrary to public policy and is therefore void.
–         Posner v. Posner
○         Changed everything, and held that prenuptial agreements that determine alimony and property rights on divorce are not void as against public policy
i.         Also allows for alimony and property rights
*         Cannot affect child support or child custody
–         Fletcher v. Fletcher
○         Creates Four Part Test to determine if valid:
i.         Freely
*         Entered into freely without fraud, duress, coercion or overreaching
*         Courts have held that when a spouse has had an opportunity to review the document before hand that they have had enough notice, and thus the prenuptial agreement has been entered into freely.
ii.        Disclosure
*         If there was full disclosure, or full knowledge and understanding of the nature, value and extent of the prospective spouse’s property.
*         In the absence of full disclosure, courts will generally refuse to give effect to a contract.
*         Requires that each contracting party be given a clear idea of the nature, extent and value of the other party’s property and resources
iii.      Encourage divorce
*         If the term’s do not promote or encourage divorce or profiteering by divorce
*         This was the test until 1970
iv.      Meaningful opportunity for counsel – added by Fletcher
*         Most courts have said this is one factor among many in determining the enforceability of premarital contracts but have not made lack of representation alone sufficient to void them (lack of counsel does not make a prenuptial agreement per se invalid).
*         Says that when disproportionate less must have an opportunity to get counsel
*         Presentation of agreement short period of time before wedding will create a presumption or overreaching or coercion.
*         This is raising the bar
○         Burden of Proof
i.         General Rule
*         A party asserting the invalidity of a contract has the burden of proof
*         In this case the party challenging the agreement will have to prove fraud, duress, coercion or overarching
ii.        Exception à Disproportionate allocation
*         Shift àWhen there is disproportionate allocation of property the burden of proof shifts to the party claiming the validity of the prenuptial agreement
*         Will have to prove each part of the test: 1) no fraud, 2) full disclosure, 3) 3rd party test is gone, 4) there was counsel or she had enough time for the other party to obtain counsel
iii.      Rationale for Burden Shift
*         Fiduciary relationship of parties
*         Normally parties are not in a fiduciary relationship and do not have to disclose.
*         But when dealing with marriage and prenuptial agreements the parties have an additional duty to provide full disclosure (fiduciary duty).
○         Only issue in this case is 1st part of test (fraud, duress, undue influence)
i.         Support enforcement
*         Court says she could have postponed the wedding because of its small size.
*         Also, evidence that she read it and understood it prior to wedding
*         She had been divorced before so she had experience with these
ii.        Against enforcement
*         No mention of divorce
*         Complicated
*         Conflict of interest
*         Day of wedding
iii.      Holding
*         Court says it was volunteered entered into
○         Notes
i.         Dead Man’s Statute
*         Prohibits a person making a claim against the estate of a deceased person form testifying to oral communications from or transactions with the deceased
*         Prenuptial agreements à can’t testify to oral communication
*         Put stuff in writing
ii.        Pension Benefits
*         The right of a surviving spouse to benefits from a private pension plan are governed by ERISA and the IRC
*         The waiver must comply with ERISA, it is not sufficient that the waiver is merely contained in the general language of an prenuptial agreement
iii.      Inheritance Issues
*         Premarital agreements include provisions concerning spouses rights in the event the marriage ends in the death of one partner à disclosure requirements
*         If it does not contain the necessary language of disclosure it will not be effective as a waiver of inheritance rights
iv.      Double Representation àNotwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
*         (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
*         (2) the representation is not prohibited by law;
*         (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
*         (4) each affected client gives informed consent, confirmed in writing.
–         Minority – Contract Law
○         A minority of jurisdictions do not follow the common law principles discussed above.
i.         These jurisdictions interpret prenuptial agreements using traditional contract law
○         Simeone v. Simeone
i.         Facts:
*         When the prenuptial agreements was made, the husband was making a lot lower than when they wanted a divorce
*         Change of Circumstances
ii.        Principles to apply
*         This court is going to apply established contract law
*         Traditional principles of contract law provide perfectly adequate remedies where contracts are procured through fraud, misrepresentation, or duress
*         Court will not look at the reasonableness or knowledge of the parties
iii.      Rule à absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements
*         Contracting parties are bound by their agreements, without regard to whether the terms thereof were read and fully understood.
*         Also, parties are bound irrespective of whether the agreements embodied reasonable or good bargains.
iv.      Reasonableness at time of dissolution
*         Courts reject looking at the reasonableness because it undermines the functioning and reliability of prenuptial agreements
*         People expect their contracts to be upheld
*         If parties viewed an agreement as reasonable at the time of its inception they should be foreclosed from later trying to evade its terms by claiming that it was not in fact reasonable
*         Key à every marriage has change in circumstances the parties must contemplate these at time of creation
v.        Misrepresentation
*         Full and Fair disclosure of the financial positions of the parties is required because

tory consensus on the relevant age of marriage today seems to be 19
○         Consent
i.         If below the statutory age of consent may be married with the consent of their parents or approval of a court
(2)        Marriage License
○         In all jurisdictions a couple intending to marry must first obtain a marriage license, which usually requires that one of the two persons seeking the license go to the office of a country or district clerk of court
i.         I.C.A. § 596.3 – Licensing Requirements à 1) 3 days in advance, 2) Signed by 2 witnesses, 3) Parties Sign, 4) $25 fee
ii.        I.C.A. § 595 – Restriction on Marriage à polygamy, age of parties, sex of parties
○         Compliance
i.         Majority (Accounts Management, Inc. v. Litchfield)à only SUBSTANTIAL COMPLIANCE with state marriage statutes is required for valid marriage
*         Facts: Failed to record the marriage within the specified time but they held themselves out as husband and wife. Wife is trying to say they were not married so she can avoid paying the medical bills.
*         Statuteà nothing says that lack of recording invalidates a marriage.
*         Married Validation Policy à aspire to preserve the sanctity of marriage and family, so statutes should be construed to FAVOR VALIDIATION even when full compliance with statutory formalities may be deficient.
Why  à third parties should be able to rely on people holding themselves out as husband and wife without having to go check if there was an actual marriage.
*         Conclusion à Recognize the parties intentions and reasonable expectations
ii.        Minority (two states: Oklahoma, Alaska, and England (Farah)) à view that strict compliance with the state marriage statutes is mandatory
*         Facts: In Virginia, did a proxy marriage in England, there was a party in Pakistan. They want a divorce, trying to claim that the marriage was not valid so he does not owe anything.
*         England Statute à the statute requires that a marriage be contracted in strict compliance with its statutory formalities.
Why àReasoning that they must guard against informal relationships
*         Celebration à court came to the conclusion, that the marriage was celebrated in England, so the English law applied, and not the Pakistan law. The evidence showed that the reception in Pakistan had no legal significance.
*         Virginia Statute (conflict of law)à Marriage that is valid under the law of the state or country where it is celebrated is valid, unless against public policy. A marriage that is void where celebrated is void everywhere.
BASIC CONFLICT OF LAW STATUTE àThis is your basic conflict of law statute
*         Conclusionà since it was not valid in England; it is not valid in Virginia.
(3)        Solemnizing a Marriage
○         Ceremony
i.         Purpose à provides public notice and a permanent pubic record of the marriage
(4)        Medical Testing
○         Some states require medical testing
i.         Serves to either inform the prospective spouse of health hazards that may have an impact on marriage, or to warn public health officials of venereal diseases
○         Most states have got rid of
i.         No reason when there are a bunch of other things that require testing
–        Conflict of Laws
○         Farah
i.         Traditional choice of law rule à validity of marriage is determined based on the law of the place where it is contracted
*         Valid there à valid here
*         Invalid there à invalid there
*         Exceptionà public policy reasons to invalidate marriage
○         R.2d of Conflict of Laws
i.         Validity of a marriage is to be determined by the local law of the state, which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage.
*         Different à because based on most significant relationship to the spouse
○         Iowa
i.         Adopts the Rule in Farah
*         If against public policy will not be valid here (cousin’s marriage, etc…)
○         Validation Argument*************
i.         Principle of Validation
*         If some reasonable argument can be made in favor of recognizing a marriage, that should be done, rather than frustrating the parties’ expectations by applying technical rules which are not based on important policies